By Bahman Aghai Diba, PhD International Law of the Seas

I am the ancient Mare Caspium,
The pride and livelihood of the ancient Empires of the Persia, Russia and the Byzantine
My coast, a heaven of fertile and untouched forest land
I was the throne of the Silk Road from Tauris to Samarkhand
From Marragha to Hyrcania
I hosted travelers from Mesopotamia to China,
I was in the crossroads of the ancient Metropolitan Empire
Where the sea-faring Marco Polo came to admire
Where beautiful village women danced with their colorful attire
Where great warriors came to fight, where merchants came to acquire
Silk, cloth and turquoise
I was defended by the Great walls of Alborz and Mount Demavand
My heritage can be still found at the Tomb tower of Lajim in Mazandarn

Along side my shores the Zoroastrians lived in harmony and peace
Where the rich Persian culture and literature refused to cease

(Parts of an interesting poem by Olivia Sharifi, titled “Save the Caspian Sea”)

The issue of the legal regime of the Caspian Sea has remained unsolved due to the lack of agreement among the littoral states to reach a suitable solution. For the last several years, four out of the five littoral states (Azerbaijan, Russian Federation, Kazakhstan, Turkmenistan and Iran) have acted as if Iran is to blame for the lack of agreement.  But the reality is that the newly independent countries and the successor to the USSR are not even ready to consider Iran as an equal state with them and give Iran an equal share of the Caspian Sea. Although the regime of Iran has made the state of Iran so miserable by its illogical foreign policies and misunderstanding the international relations, that it has to beg countries like Azerbaijan, Turkmenistan and Kazakhstan, to consider it as an equal partner in the Caspian Sea, in fact these countries have almost no right to be considered as equal to Iran in the Caspian Sea.

Iran and the USSR owned and administered this landlocked body of water for hundreds of years and after the demise of the USSR, the Caspian Sea must have been first divided between Iran and the inheritors of the USSR and they inheritors could define their territories as they wished.   What is wrong with this?  Why it makes so-called experts inside and outside of the region mad?  Is it contrary to the International Law? Or is it contrary to the historical facts? Definitely no.  The treaties of Iran and the USSR and the historical facts prove this.  Those who claim that the treaties between Iran and the Russians do not define the issues like sovereignty are deeply wrong because:

1. The treaties have actually several times referred to the Caspian Sea as “the sea of the Iran and Russia.”
2. The issue of sovereignty was not discussed because it was clear and there was no need to discuss about it.
3. The older treaties are always vague like this and the international courts have concluded on their basis such documents so many times regarding the issues that have not been directly addressed. 

The problem of Iran is lack of power, lack of international good reputation, lack of prestige, and lack of allies and on the contrary plenty of enemies in the high places. The only problem is politics.  Iran has a weak regime and the other countries are misusing the situation. 

In the last couple of years, the littoral states made efforts (like Ashgabat Summit Conference) and failed in finding a collectively agreed solution.  Following the failure in the collective diplomacy, the bilateral efforts gained a new weight.  The result was conclusion of several treaties between the Russian Federation, Azerbaijan, Kazakhstan and these two.  But the so-called the southern states of the Caspian Sea, i.e. Iran and Turkmenistan have declared them as null and void.

The position of Iran regarding the legal regime of the Caspian Sea was originally a kind of condominium.  The idea of condominium was based on the interpretations from the previous agreements of Iran and the Russians (1921, and 1940) when no other country existed in the coastal lines of the Caspian Sea. Although the idea of a condominium in the Caspian Sea looked difficult to swallow for many expert and inexpert persons inside and outside the region, and it was criticized by some sources as building castles in the skies, but in the era of integration, cohabitation and globalization, it was a kind of civilized and modern option based on the common respect and recognition of the ability of several neighboring countries, with deep cultural affinity and historical backgrounds for management of a common property. 

However, perhaps the idea was too soon for a region full of newly independent states, which were very sensitive to be  “independent!”  The four new countries were not ready to trust each other and Iran up to such extent as welcoming common management of the common closed body of water, in the way the common waterways like great international rivers of the Europe are run.   They were so suspicious for any kind of common arrangements with Iran that they even rejected the proposal of Iran for establishment of the Caspian States Cooperation Organization.

Later, Iran proposed a new option without giving up the condominium idea.  Iran gave up the insistence on the condominium only when it was left lonely in the scene.  The desire of Iran for the common management of the Caspian Sea was so great that it welcomed the Russian tricks and pretensions for having similar positions as Iran for more than one decade after the collapse of the USSR.   The new option was that: if the condominium (a kind of joint management of the Caspian sea affairs) is not acceptable to the other states, then the whole Caspian Sea must be divided into 20% sections for the five littoral states.  This meant that Iran still preferred the idea of condominium for the common administration of the Caspian Sea but for practical purposes and due to the dissatisfaction of others, it was ready to accept the new option.  In fact, the new position was the reaction of Iran to the wasting of Iran’s time and energy by the Russian Federation for more than a decade. 

The Russian Federation for its turn was busy imposing the idea called MML (Modified Median line) to the other states in the Caspian Sea.  According to this idea, the seabed of the Caspian Sea is divided between the concerned states on the basis of a median line, which is the extension of the coastal points, and the superjacent waters are left for “ free use” of the states.  On the basis of this formula, agreements have been reached between the Russian Federation, and Kazakhstan, Russian federation and Azerbaijan, and Kazakhstan and Azerbaijan. The Russians are busy exerting pressures on Iran and Turkmenistan to accept the MML.  Sometimes they do it by words and some other times by acts.  The Russian military maneuvers in the Caspian Sea which were the biggest maneuvers in the post-Soviet era were meant partly to demonstrate the power of the Russian Federation to the political leaders of the area, including and especially Iran.

What is recently tabled indirectly and tacitly as the new approach by the Iranian authorities is that the Caspian Sea must be divided according to principles of justice, fairness, equality and equity.  What is meant from justice and equity by Iran in the Caspian Sea is very simple:  Iran wants to discard the MML as the basis of the division because it does not bring justice and it proposes new criteria taken into consideration for creating a just and equitable condition in the Caspian Sea.   The division must make note of many other considerations in addition to the length of the coastal area in the Caspian, and especially the historical rights of states.   This is of course, very close to the idea of dividing the whole sea into five equal sections.  On the other side, it is opposed to the MML in the notion of the dividing of the whole sea not only the seabed.

It is clear that the situation is not in Iranian favor with the MML.  Iranian authorities in different levels, have called the bilateral treaties of the Russian Federation with Kazakhstan and Azerbaijan, and between Azerbaijan and Kazakhstan with themselves, and even the recent preliminary agreements of Kazakhstan and Turkmenistan for using the same formula, as null and void because they were contrary to the previous agreements of all concerned countries to make decisions regarding the new legal regime of the Caspian sea by consensus (agreement of all five countries) in several occasions.

Even those states that have concluded bilateral treaties have not solved all issues.  The concerned treaties are concentrated on the division of the seabed on the basis of the modified equidistance or median line, leaving many other issues unresolved.  The formula, which is devised by the Russian Federation, leaves the waters of the Caspian Sea free for shipping of all littoral states (there is nothing clear about the shipping of the non-littoral states).  The littoral states, except than the Russian Federation do not have any important naval units or commercial ships in the Caspian Sea.  So it is clear that the formula used in the concerned bilateral treaties is devised according to the interests of the Russian Federation, leaving the door open for all kinds of disputes.

Iran and Turkmenistan do not even agree with the criteria used for the division of the seabed in the Caspian Sea.  Iran insists that the division of the Caspian Sea must be based on equitable and just principles giving at least equal shares to all five states.  Iran, which could not convince others to accept the common administration of the sea, now is insisting on the equitable division of the whole Caspian Sea.  Iran demands the Alborz oil/Alove fields that Azerbaijan is claiming that too.  Turkmenistan insists at least on the separate arrangements for certain oil fields (Sardar/Capaz) that Azerbaijan is also claiming them.

If you mix these regional issues to the existence of undemocratic, corrupt, and unstable governments in the littoral states of the Caspian Sea, and the inclination of the great powers to use the Caspian oil as rival or alternative to the OPEC oil, and the expansion of NATO to the East, then you see the picture of oil, blood and politics, as Alfred Noble saw it a century ago.

The Caspian Sea will be an important spot in the international affairs and its importance is going to grow in the future.  This importance is the result of regional and global geo-politics, oil recourses, and terrorism and narcotic drugs.  The littoral states of the Caspian Sea are gradually inclined to strengthen their military forces in the Caspian Sea and the era of the militarization in the Caspian Sea has already started.  The increase in the militarization makes a bad mixture with the regimes all around the Caspian Sea deeply plunged in undemocratic and instable dictatorships, full of corruption, violation of human rights and fundamental freedoms, discrimination, nepotism, social gaps and ethnic rivalries.

Some of the unsolved issues in the Caspian Sea that can be a source of conflict at any moment are:

- Discussions about the “ Caspian Sea Convention” have been going on for a long time. Numerous meetings of the Working Group for drafting the convention have been held in the littoral states (Iran will host the 17^th session of the Ad Hoc Working Group).  The concerned officials of the littoral states have reported some progress after each and every session in the last several years.  However it seems that apart from protocol points and trivial treaty regulations (such the articles covering the signature, approval and adoption of the convention), no special progress is achieved in the substantial issues.

- The common oil and gas fields. Any effort to use such sources by one side will trigger the reactions of the one or more other states.  It is noteworthy that some countries like Azerbaijan have been exploiting the oil resources of the Caspian region unilaterally due to the political problems imposed by the Russians on Iran and if we take that the Caspian Sea was a common body of water between Iran and Russia, a matter compensation from the Azerbaijan and Russia to Iran is in order.

- The mutually claimed fields (Iran and Azerbaijan, and Turkmenistan and Azerbaijan, Azerbaijan and the Russian Federation). These have already been sources of actual conflicts. In fact the littoral states are even sensitive to research activities and seismic studies on such areas. Azerbaijan disagrees with Turkmenistan over the ownership of three oil fields located near the center of the Caspian Sea, a dispute that caused Ashgabat to withdraw its embassy in Baku in the past.  Azerbaijan reacted negatively when Royal Dutch Shell announced plans in 1998 to explore a portion of the Caspian Sea close to Iranian side. They protested and Iran stopped the actions.  BP has signed a production sharing agreement (PSA) in 1998 with Azerbaijan for exploration and production activities in Alov-Araz Sharg, that Iranians call the same area as Alborz field.  BP is the operator for this agreement. The protest of Iranian side to the said agreement in fact started right after the consortium was established in 1998 in London. Iran claimed that Alborz oil field is in the area belonging to Iran and asked Azeris to stop the activities there.  Later, the Iranian boats forced the research vessels to leave the area and Iranian aircraft flew over the area.

- The distinction in the military and commercial navigation. This distinction is very important for the countries other than Russia that has a huge naval force in the Caspian Sea.  Separate regulations are needed for the movements of the naval forces, and the commercial fleet.

- The situation of the navigation for other countries (except than the littoral states).

- Necessity of determining special fishing areas.  This is again important because Russia has industrial advanced fishing vessels in the Caspian Sea and the fishing activities of other littoral countries, especially Iran, are limited to low level fishing by the means that hardly different from the hundreds of year ago.

- Over-flight in the Caspian airspace.  The issue includes the flight by littorals and non-littoral, an also the flight of military and civilian aircraft of the littoral and non-littoral states. 

- Responsibility for pollution. The Caspian Sea is in serious environmental danger.  Iran has a small share from polluting point of view, but it gets a much extensive part of pollution created by other countries because of the sea currents in the Caspian Sea.  Russians are the greatest polluters.  They create 80% of the Caspian pollution.  After that, Azerbaijan is producing some of the worst kinds of pollutions because of their outdated oil refineries and other oil installations in the Caspian Sea.  Kazakhstan and Turkmenistan are after Azerbaijan in the pollution production. Nuclear pollution is one of the less known and rarely discussed dimensions of the serious pollution problems in the Caspian Sea.  At the same time, the radioactive contamination is one of the most damaging and dangerous types of pollution in the world.  The nuclear activities of the coastal states, implications of the former nuclear explosions, the remnants of the nuclear tests, the nuclear wastes (which will be radioactive for thousands of years) and finally the nuclear side of oil exploration and exploitation and transportation (especially by pipelines) are the sources of nuclear danger in the Caspian Sea.

- The construction of trans-Caspian pipelines. The pipelines are problematic. The Russians oppose any trans-Caspian pipeline due to ecological points. However, this seems to be a cover for more substantial demands and also it is aimed at creating problems for exporting the Kazakhstan oil through the Baku-Tiblisi-Ceyhan Crude oil Pipeline (BTC).  Azerbaijan and Kazakhstan do not accept the Russian view in this regard.  Iran is sitting on the fence and ready for better deals. The concerned pipeline is almost complete.  It will be operational in the mid 2005. This will be the first direct pipeline from the Caspian Sea to the Mediterranean Sea (it is 1760 Kilometer long and most of it is in the Turkish territory).  It is also the symbol of the failure of Iran and Russia in the pipeline diplomacy of the Caspian Sea.  If the pipeline of Turkmenistan- Afghanistan-Pakistan is also finalized, another failure for Iran will be registered. The BTC is designed to carry one million barrels of oil everyday. It is clear that Azerbaijan has not that much oil (at least for the present) to export though the pipeline and it will certainly push Kazakhstan to export some of its oil through this line.  There are educated rumors that Russia may drop its long hostility to BTC, and once it is ready, some of the Russian crude may be exported through the new pipeline. Another step for the multi-faceted Russian policy and a slap in the face of Iran’s “ swap policy.”  The Swap policy of Iran comprises of receiving the oil from the Caspian Littoral States in the north and delivering the same amount of Iranian oil in the Persian Gulf.  The policy did not have much success in the past but recently it has come to a halt due to the conflicts on the oil prices.

- Security of the pipelines is an important issue, especially noting that the Baku-Jeyhan pipeline (some experts have called the construction of this pipeline the most important development in the Caspian Sea since the collapse of the USSR) will be finished in near future and it needs sectary dearly.  In addition to the concerned countries, the NATO has already started special plans for protection of the pipeline. 

- Passage from (or the legal regime of) the Volga-Don, and Volga-Baltic waterways. Recognition of their international status and defining the rights of their littoral and non-littoral states for using them.

- The issue of mass smuggling of the narcotic drugs (The narcotic drugs smugglers and international Mafia of the drugs have changed the path of transportation from: “ Golden-Triangle-Afghanistan-Iran-Turkey-Western Europe and USA” to the new route of “ Golden Triangle-Afghanistan and Iran-Caspian Sea, the Eastern Europe, the Western Europe and USA.” It must be noted that in addition to being a transit route for the international networks of the illicit drug trafficking (which many of them are in close relations with the terrorist organizations), the central Asian countries have the potential to turn into narcotic drug producing states too.

- Terrorist activities that can disrupt the transfer of oil and gas through subversion.

- Militarization of the region and the efforts of the Caspian states to increase the military power in and around the sea. It is interesting that The Russians are not interested in the talks about the militarization in the Caspian Sea because they have the biggest force in the Caspian Sea.

Convention for protection of the Caspian environment, which was signed among the littoral states of the Caspian Sea (Turkmenistan signed it later) at 11/05/03, but it did not solve the issue of responsibilities. It only says: the littoral states are committed to take necessary steps individually or collectively to reduce and control the pollution.  It doest not make clear the responsibility of states, especially Russia which produces 80% of the pollution in the Caspian sea, for observing all international documents that it has signed regarding pollution control especially for the marine pollution by oil (accidental or unintentional and intention or operational pollutions).

The People of Iran believe that their government has failed to achieve Iran’s rights in the Caspian Sea due to the lack of international prestige, bad relations with key states, and corruption.  It is widespread belief that the real ruling circles in Iran have no respect for national interests and they act only on the basis of the preservation of the ruling clique. 

The lack of democracy in Iran has led to the distance of people and government in Iran. Therefore, the government is trying to follow a secret diplomacy in all cases.

The meeting of the heads of states of the Caspian region did not reach a conclusion in Ashgabad (Turkmenistan hosted the summit conference in April 2002) and the summit meeting in Tehran was postponed without a date. The heads of the Caspian Sea States were supposed to have a summit conference in Tehran sometime in January 2005 to discuss the convention of the legal regime of the Caspian Sea, but it was postponed without clear explanations.  Even during the recent trip of the Azeri President to Iran (he signed more 10 protocols which will added to another 15 MoUs that were signed during the trip of Iranian President to Azerbaijan and all of them are going to be filed without action), no discussions took place or any papers signed about the most important issue of the two countries: the Caspian Sea.

The fact is that issues like the nuclear program of Iran and the possible US attack (including through Azerbaijan Republic) that threatens the entire survival of the regime in Iran, has pushed aside the Caspian issue.  At the same time, Iran does not need the sources of the Caspian Sea urgently and it wants to wait for better circumstances.

About the author:

Bahman Aghai Diba is a Senior Consultant to the World Resources Company in VA, USA.